FEDERAL COURT OF AUSTRALIA

MZYJJ v Minster for Immigration and Citizenship [2011] FCA 957

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    MZYJJ and MZYKJ are husband and wife. They are Sri Lankan citizens. They have come to Australia on a number of occasions on tourist visas. On the last occasion on which they did this they arrived on 29 October 2009.

2    On 11 November 2009 they applied for protection visas. The principal claimant was MZYJJ. MZYJK made no independent claims. A delegate of the Minister refused their applications. They appealed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision.

3    MZYJJ and MZYJK sought judicial review of that decision in the Federal Magistrates Court. Their application was dismissed: see MZYJJ v Minister for Immigration [2011] FMCA 247. This is an appeal from the Federal Magistrate’s decision. The appeal is brought on a single ground to which is sub-joined particulars. The ground and the particulars read:

“A.    The decision of the Court/Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

        PARTICULARS

(i)    The decision of the Tribunal was made in breach of an imperative duty imposed on the tribunal or an essential pre condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s 65 of the Migration Act to grant or refuse the applications and its powers to conduct a review under s414 of the Act.

(ii)    The Tribunal failed to take into account relevant documentation provided, namely documentation relating to the legal procedure in Sri Lanka for the changing of a name.

(iii)    The tribunal also failed to accord the applicant natural justice by not allowing the applicants to make proper use of the interpreter.

(iv)    The tribunal misconstrued and misinterpreted the convention criterion in that the test is not whether the Sri Lankan government was unable or unwilling to protect the applicant, but rather whether the applicant owing to a well founded fear is unable or unwilling to avail himself the protection of the country. The tribunal clearly has not understood the criterion for refugee status and applied the wrong test and thereby fell into jurisdictional error.

(v)    The tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the PA members/supporters an unfounded fear.

(vi)    The tribunal makes no reference to any Country information and if it did refer to country information, there would have been detailed information about the violence that takes place at election time between the political parties and how the police force was politicized and how politicians manipulate the police for their own.”

4    These particulars substantially reproduce part of the appellants’ contentions of fact and law which were filed in support of their application for judicial review in the Federal Magistrates Court. Although they purport to support a ground alleging that the Court acted without jurisdiction or that its exercise of jurisdiction was affected by error, I am prepared to proceed on the basis that, in substance, what the appellants assert is that the Federal Magistrates Court erred by failing to uphold their judicial review application on one or more of the grounds on which they relied. The grounds appearing in the appellants’ application to the Federal Magistrates Court were more narrowly confined. Despite this the Federal Magistrate, no doubt having regard to the fact that the appellants were unrepresented, treated the contentions of law as though they were grounds.

5    I understand Particular (i) to be a general complaint of jurisdictional error and Particulars (ii) to (vi) to provide the bases on which the general complaint is made. I will, therefore, deal separately with Particulars (ii) to (vi).

PARTICULAR (ii)

6    One of MZYJJ’s claims in support of his application for a protection visa was that, because of his ancestry, he was regarded and treated as a Tamil. Communal riots had occurred in 1983 and Singhalese Sri Lankans had turned on Tamils. In 1985 his mother, who was conducting the family business, determined to change the family name to a more Singhalese sounding surname. This she did and other members of the family, including MZYJJ, had done likewise. This change of name was published in a newspaper circulating in Sri Lanka. In the course of the hearing the Tribunal asked MZYJJ why his mother would have put the family’s name in a newspaper if the family members were fearful of being known as Tamils. MZYJJ responded that Sri Lankan law required changes to names to be published in a newspaper.

7    The Tribunal accepted that the family name had been changed in 1985 in an attempt to mask their Tamil heritage. They had done so because of the violence directed towards Tamils in 1983. It accepted that the family members were “required to make the name change public” although it was uncertain whether there was a legal obligation at the time to do so in a newspaper.

8    The Tribunal did not fail to have regard to the documents submitted by the appellant. It refers in its reasons to the Sri Lankan Births, Deaths and Registration Act, a copy of which had been provided by the appellants.

PARTICULAR (iii)

9    The appellants were assisted by an interpreter when they appeared before the Tribunal. At no stage did they complain that they were prevented from making “proper use” of the interpreter despite being invited, at the outset of the hearing, to advise the Tribunal of any difficulty relating to the interpretation of evidence and submissions.

10    When asked to elaborate on this complaint the appellants said that, in the course of the first hearing, which was conducted on 8 April 2010, the Tribunal member had kept interrupting MZYJJ’s evidence. MZYJJ said that, as an unrepresented litigant, he could not collect his thoughts and present his argument logically. He said that he had felt intimidated.

11    When this ground was raised in the Federal Magistrates Court the Federal Magistrate asked the appellants to identify the exchanges between MZYJJ and the Tribunal which were the subject of complaint. An adjournment was granted so that the appellants could examine the transcript of the Tribunal hearing.

12    When the hearing before the Federal Magistrate resumed the appellants drew attention to four exchanges during which, it was said, the Tribunal’s intervention had prevented MZYJJ from presenting his evidence and argument in the manner in which he would have wished. These exchanges are identified and summarised in the Federal Magistrate’s reasons at [70].

13    MZYJJ confirmed during his oral submissions this morning that the passages on which he had sought to rely before the Federal Magistrate were the same passages which founded the appeal ground presently under consideration.

14    I have read each of the exchanges to which attention was drawn. In none of them does MZYJJ appear to have been overborne. In most instances the Tribunal’s interruption took the form of a question which provided him with the opportunity of elaborating on an aspect of the evidence which he was giving. At no point does he appear to have been distracted.

15    The Federal Magistrate detected nothing untoward in the manner in which the Tribunal had conducted the hearing. Nothing which had occurred was suggestive of jurisdictional error.

16    I agree with the Federal Magistrate, for the reasons which he gave, that this ground lacks substance.

particulars (iv) and (v)

17    The appellants were unable to point to any passage in the Tribunal’s reasons in which it posed the test of “whether the Sri Lankan government was unable or unwilling to protect” them.

18    On the contrary, the Tribunal directed itself in the precise way the appellants say it should have done.

19    It is true that the Tribunal did not deal with the degree of state protection available to them in Sri Lanka. The reason for this was that the Tribunal did not consider that, in the reasonably foreseeable future, the appellants would face any real chance of persecution for a convention reason. The issue simply did not arise.

PARTICULAR (vi)

20    The terms of this Particular are unfortunate. They suggest that no reference to country information will be found in the Tribunal’s reasons. There are many such references. When making submissions this morning MZYJJ indicated that the substance of his complaint was that the Tribunal had failed to have regard to country information which the appellants had placed before it.

21    The Tribunal acknowledges, in its reasons, that such material was provided. It does not, however, subsequently expressly refer to this material when giving reasons for affirming the decision under review.

22    The Tribunal was under no obligation to comment on the country information supplied by the appellants. Its failure to do so does not give rise to any jurisdictional error: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14].

DISPOSITION

23    None of the appellants’ grounds has been made out. The appeal must be dismissed with costs.

Associate:

Dated:    22 August 2011